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Ruling sets up next mining battle

A federal judge on Monday refused to revoke the largest mountaintop removal strip mine permit in West Virginia history.Chief U.S. District Judge Charles Haden turned down a request by environmentalists for a temporary restraining order to rescind the permit issued last week by the state Division of Environmental Protection.Haden sided with lawyers for Arch Coal Inc. subsidiary Hobet Mining Inc., who said there was no need for the action.Roger Wolfe, a Hobet lawyer, said the company would not start mining without first receiving two other permits from federal regulatory agencies.Wolfe also said that, once those permits are issued, Hobet would not start mining for 10 days so environmentalists would have time to challenge the permit again in court.Arch Coal and DEP officials said last week that, legally, no mining could begin until additional permits are approved by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency.During a hearing Monday, Haden said he concluded that Hobet "made a significant concession to the environmentalists here today."I am going to deny the application for a temporary restraining order. It is moot because the coal company lawyers have conceded not to attempt to take further action until this is resolved."Monday's 45-minute hearing was the first public court skirmish in what promises to be a long legal battle over the future of mountaintop removal coal mining in West Virginia. Several dozen environmental activists, industry lobbyists and state DEP officials attended the hearing in the federal courthouse in Charleston.In July, the West Virginia Highlands Conservancy and a group of coalfield residents filed suit over the practice.The suit alleges that DEP and the U.S. Army Corps of Engineers have issued mountaintop removal permits that don't comply with federal environmental rules. Among other things, the suit alleges these permits allow coal companies to illegally bury streams under millions of tons of waste rock and earth. The suit also alleges permits do not force coal companies to prepare required post-mining development plans for land flattened by mountaintop removal.Last week, DEP Director Michael Miano issued a permit that would allow Hobet Mining to strip a 5-square-mile area along Pigeonroost Branch near Blair, Logan County.Environmentalists had specifically targeted this mining proposal in their suit. They alleged the permit written by DEP did not include required showings that the mining will not harm streams or violate the federal Clean Water Act.Currently, the mine is in limbo because EPA has refused to allow the state to issue a Clean Water Act permit to allow five large valley fills in and around Pigeonroost Branch.
Environmental group lawyer Joe Lovett told Haden that DEP lawyer Russ Hunter violated an agreement to give Lovett two days notice before a separate mining permit for the Pigeonroost Branch mine was granted.
"Basically, we had a deal and he broke it," Lovett said.Lovett also said his clients don't want to destroy the coal industry, but only want regulatory agencies to follow the law when they issue mining permits."We're not attempting to stop the administrative process," Lovett said. "We're merely asking that no more illegal permits be issued."Lovett said that the DEP action forces his clients to file an appeal of the mining permit when they don't have complete information about what the mine will look like. The mining plan may have to change for EPA to lift its objection, Lovett said.Wolfe and lawyers for DEP agreed they would start a 30-day clock for filing an appeal after the legal issues surround the permit are resolved.
Haden has scheduled a full hearing on the larger lawsuit for Dec. 10.Wolfe said that Lovett could not yet show his clients would be harmed by the permit issuance because the DEP approval alone doesn't allow mining to start."There is not going to be any mining activity," Wolfe said. "There is not going to be any disturbance in these areas ... most likely for many, many months."Wolfe also made a point of telling Haden that, if the permit was not approved, "there is a significant likelihood that a number of people are going to lose their jobs."Arch Coal announced on Oct. 30 that, if the mine doesn't receive all its permits, up to 400 coal miners could be laid off starting on New Year's Eve.Hunter, a lawyer for the DEP Office of Mining and Reclamation, said state officials want guidance from the judicial system about in what order they should issue the various permits strip mines need."There is a need for determining who regulates what in this particular area," Hunter said. "We are asking the court to answer that."There have been a lot of questions asked historic questions," Hunter said. "There is to much uncertainty and a need for guidance."Still, Hunter argued that DEP had done nothing wrong in issuing the Pigeonroost Branch permit."There has been no evidence that the exercise of DEP's permitting discretion was tainted in any way," Hunter said. "It was done according to the established practice and procedures." 
To contact staff writer Ken Ward Jr., call 348-1702.
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